E-Discovery Tip Sheet
Redaction Exposed
When we talk about reserving material from document production, we generally
think about two main strategies:
1.
withholding documents under a claim of privilege, or
2.
redacting specific portions of produced documents.
Volumes can and have been written about privilege claims, privilege logs, and
clawbacks of inadvertently-produced privileged material. In the past year alone, we
have seen Samsung chastised for posting Apple secrets to its employees, and Magistrate
Judge Andrew Peck lecturing all who would listen that the absence of a 502(d) Order
(specifying return of inadvertently produced privileged material) under the Federal
Rules of Evidence should be grounds for legal malpractice.
Let us confine our discussion today to redactions. What are we talking about
when we talk about redaction?
Let’s first turn back to the days of photocopies of black-marked photocopies.
Redactions obliterate a privileged or otherwise sensitive portion of a document so that it
may be produced at least in part. Sometimes, in very small part: George W. Bush’s
military service record, for example, revealed little more than his name and a visit to the
dentist. As long as the information was on paper, or exportable to paper, markers,
scissors and tape ruled.
The mechanics of redaction only started to change when the focus of discovery
shifted to electromagnetic bits. Back in the early-to-mid aughts, electronic documents
became the principal subjects of interest as digital document creation and storage was
acknowledged to be more prevalent than paper document creation. E-Discovery, the
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collection, review and production of electronic mail and computer-generated
documents, was the focus of study (e.g., The Sedona Conference), decisions (e.g.,
Zubulake v. Warburg and its sequels) and law (the December 2006 amendments to the
Federal Rules of Civil Procedure).
It came to pass that one had to redact electronic documents. And it was likewise
true that one could not do so, at least without denaturing the original document. If one
deleted text from a Word document (most preferably a copy), the metadata and the
shape of the document changed, so arguably it was not the same document, but an
adulterated version. Obscuring text also involved adulterating the document, with the
bonus of being ineffective: a search, or a font color change, or a manipulation of an
overlaid graphic would still turn up the text.
Enter Adobe
Adobe’s Portable Document Format (PDF) seemed to be the ideal solution to the
problem of producing redacted documents. As a digital print medium, the PDF file
could be seen as an a print-out where metadata could be elided and text obscured. The
difference between obscuring and redacting text became apparent when deleted
material prepared by Merck & Co. in 2005 for publication was found in the document’s
metadata, accidentally disclosing information which linked Vioxx to an increased risk
of heart disease.<1>
Adobe addressed the issue in a 2006 technical note<2> which cautioned that
“[p]roblems can arise when editors use an improper method such as trying to obscure
information rather than deleting it, or if they are unaware of sensitive metadata in a
document.” The paper goes on to recommend using the third-party Redax tool from
Appligent (which is still offered by Appligent Document Solutions); otherwise, “every
effort should be made to redact in the authoring application before converting to PDF.”
The technique described involves:
copying a document,
in the copy, deleting the redactable content (or replacing it with XXXX characters
or a blank graphic to maintain the document’s spacing),
creating a new blank document,
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copying the content of the marked up copy and pasting it into the new blank
document,
setting the PDF conversion parameters (if the Adobe plug-in is present) to
confirm that Convert document information and Attach source file to Adobe PDF are
turned off, and
saving the new document.
If redacting a PDF document directly, Adobe in this paper recommends doing black
markups, exporting the page images to TIFF (tagged image file format), then building a
fresh, image-only PDF from the TIFFs.
Apparently, the Transportation Security Administration (TSA) did not get the
memo. In December 2009, a TSA contract employee posted a PDF format ‘redacted’
security manual to a publicly-available Federal procurements website. [See footnote
<1>] The text of the redacted content in the manual magically appeared when the black
boxes were selected, copied, and pasted into Notepad. A betanews commentary
published following the debacle<3> noted that Adobe had long since released Acrobat
Professional 8, its first release to include true built-in redaction. The included Mark for
Redaction / Apply Redactions tool passed the publication’s tests with flying colors.
Now redaction, with selection of text and scrubbing of underlying content, is a standard
feature of Acrobat Professional, Nuance PDF Converter, and a host of other tools.
Redaction in Review
Document review software has long addressed redaction of images (and more
recently, near-native views) of documents during review. Summation redacted; Opticon
/ Concordance Image redacted, allowed redactions to be toggled and text selected. These
days translucent redaction, which renders the redacted text visible while still under
review until the production burn-in, is often a default view.
Redaction in review software remained a pretty manual process: instead of a
black marker, you had a pointer-applied tool, but it remained that every redaction
required individual judgment and application.
More vexingly, while data have grown more portable, redactions have not. XML
should allow the specification of redaction coordinates for each document and each
page, but EDRM XML transfer has yet to sweep away de facto standards such as
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Concordance DAT or OPT or IPRO LFP formats. Converting Summation iBlaze data
means leaving behind all those .ann files in the markup folder; at least you have the
Bates numbers of the affected pages. Concordance provides the –Redlines database for
generating a report and parameters. That is not the same as seeing your REDACTED
box in the same place on the same page without further intervention.
One other wrinkle is the handling of extracted or OCR text for a redacted
document. Early applications were not cognizant of a redaction – in which case the text
could be inadvertently produced; later applications might acknowledge the redaction
by suppressing all text or native production for that document. In either case, an extra
OCR step for redacted document images is required, whether handled by your
principal review application or not. Be sure you know how your application handles
redactions before you send out your first production.
Redaction: The Next Generation
While, as noted, redaction requires eyeballs, some parts of the process which
lend themselves to programming rules have surfaced in various applications. Some
features to look for:
Auto-redaction – This is the ability to find and auto-redact identifiable strings of
text, such as Social Security numbers, credit card numbers, telephone numbers or
business tax ID numbers. It uses a standard coding system, called regular
expressions, which allows users to build “masks” of general or specific numbers,
uppercase or lowercase characters, and other type objects, to identify instances of
the item sought. Those are then redacted automatically under the rule set.
Repetitive redaction – If a document has several consecutive pages which are to
be redacted in their entirety, some systems will allow the coordinates to be
defined and set to repeat.
Negative redaction – Sometimes the bulk of the content needs to be secured, but
a few tidbits may be exposed (see the Bush example above). Some review tools
allow the exposed spaces to be defined in each page, with the remainder
defaulting to redacted.
As with public scandals, it is less the fact than the concealment that can
complicate matters and trip up the unwary. Know your objectives, know your
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software, be vigilant, and verify that you are, like a good fashion designer, in firm
control of what is to be concealed and what is to be exposed.
REFERENCES:
<1>
COMPUTERWORLD -- TSA Gaffe Shows Pitfalls of Redaction by Jaikumar Vijayan
[Jan 4, 2010] (http://www.computerworld.com/article/2550522/security0/tsa-gaffe-showspitfalls-of-redaction.html)
<2>
Redaction of Confidential Information in Electronic Documents [Adobe Technical
Note - 2006] (http://partners.adobe.com/public/developer/en/acrobat/Redaction.pdf)
<3>
betanews – The PDF redaction problem: TSA may have been using old software by
Scott M. Fulton, III [12/10/2009] (http://betanews.com/2009/12/10/the-pdf-redactionproblem-tsa-may-have-been-using-old-software/)
-- Andy Kass
[email protected]
917-512-7503
The views expressed in this E-Discovery Tip Sheet are solely the views of the author, and do not necessarily
represent the opinion of U.S. Legal Support, Inc.
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